William Horsley, International Director, Centre for Freedom of the Media, University of Sheffield and UK Chairman of the Association of European Journalists. Lecture given at Frankfurt University of Applied Sciences Symposium Presse – und Medienfreiheit in der EU – ein bedrohtes Grundrecht?, 16 January 2019

Many thanks for the invitation to speak to you here in Frankfurt; and I am grateful to the organisers for permitting me to speak in English today.

I have strong memories of Frankfurt from my years as the BBC’s news correspondent in Germany in the 1990s. I remember the monastic austerity of the interior of the Bundesbank and its senior staff. I was living in Bonn, then the seat of the German government, so I often had to drive from there to Frankfurt at barely one hour’s notice to report on the Bundesbank’s press conferences. Every interest rise by the Bundesbank was hot news for all of Europe –including Britain – because the economy of every other country was directly affected.  

One of those press conferences provided a lesson in good and bad journalism. The fierce competition to be first to break the news about a German interest rate rise led one of the international news agencies to jump the gun: they reported wrongly that interest rate had been raised again, when they had not. It was ‘false news’. The Reuters news agency, whose reporter had wisely waited for a while longer, reported the outcome correctly. And Reuters used that episode for a big advertising campaign claiming that it was uniquely able to report the facts, not misleading information and speculation. It underlined the vital importance of trust in media and the information they provide to the market and to the general public.

Today, the whole media landscape has dramatically changed, and so has the way most of us can get our information from our own preferred sources. In less than twenty years, the whole of Europe – above all of course the populations of the former communist countries of Eastern Europe – has gone from a condition of information scarcity to one of information plenty, or even ‘overload’. That transformation has infinitely expanded our easy access to information and ideas, but it has also created the conditions in which the environment for journalists – even within the European Union – has grown more hostile and dangerous.

The EU calls itself a community of law and democratic values. The Charter of Rights asserts that media freedom and pluralism shall be upheld. The Copenhagen Criteria are meant to ensure that countries that accede to the Union adhere to democratic values and the rule of law. Yet the EU also says that it lacks ‘competences’ to enforce these ideals. A wealth of evidence, from assessments made by the Council of Europe, the OSCE and the European Parliament, as well as leading NGOs like Reporter Without Borders, Committee to Protect Journalists and Index on Censorship, all show that the record of EU member states concerning press freedom and the safety of journalists has been on a rapid downward path; and it plunged even lower with the targeted killings of at least two investigative journalists (in Malta and Slovakia) within the past 18 months. I will return to the situation inside the EU in a few moments.  

What are the causes of the ‘new hostility’?

First, though, what is the connection between the changed business model of journalism and the emergence of a more hostile environment? My first point is that the traditional media, made up mainly of trained, full-time professional journalists, have lost their privileged status as the ‘gatekeepers’ of the news. You could even say that professional newsgathering organisations have fallen from being the masters and ‘landlords’, so to speak, of the media world. Instead they have become the ‘tenants’. They now largely depend on the giant Internet companies to deliver their products to their audiences and readers. The market value of journalists’ unique set of skills, including journalistic ethics, has been eroded and in some cases lost. The media world has become more like a free-for-all, where the entry costs are low. All comers are free to compete through the media for public attention, and for commercial or political gain, with sensational, unverified material, recycled stories, and the deliberate use of propaganda and manipulation.

Secondly, into this open media space have rushed all the social actors with the most to gain from having a louder voice and a bigger share of the media ‘pie’. Powerful political and economic forces have ‘invaded’ the media space and seek to influence or even control it. Those powerful forces seek to dominate the information space by means of very high concentrations of media ownership in a few hands, as well as all too often through physical violence – including police violence – and legal constraints, especially the misuse of law.  Simply put, the legal protections for the media’s right to report on matter of public interest were developed over many years on the basis that the press has a vital ‘watchdog’ role over public life – to expose corruption, wrongdoing and abuses of all kinds; and that freedom of expression and press freedom are therefore an essential pre-condition of a democratic society.

That principle was directly challenged 20 years ago by Vladimir Putin in Russia, who loudly proclaimed his intention to create a ‘power vertical’ through a maximum concentration of all forms of power in the hands of the state. And astonishingly, two years ago even in America that principle of the ‘watchdog’ role of the press was mocked by President Trump. He came to office declaring ‘war’ on the mainstream media and instructing his press spokesman to tell the White House press corps that from now he intended to turn the tables: instead of the press scrutinising the actions of the Trump administration, the president and those around him claimed the right to scrutinise the media. And he attempted to do just that, routinely condemning the media as ‘fake’ and ‘enemies of the American people’.

Back in Europe, the principal creators of the ‘hostile environment’ that emerged were over-mighty governments, which choose to use their monopoly on law-making, law-enforcement and the courts for their own advantage. Alongside such authoritarian kinds of government came a second important set of actors, made up of oligarchs, unscrupulous business figures and shadowy groups with links to security agencies or even criminal organisations.  Sometimes those two sources of hostility to a free press co-exist; sometimes they form unseen, and in certain cases criminal, alliances; and among their main opponents or ‘enemies’ are independent and critical journalists.  

The alarming scale of the assault on media freedom in today’s Europe is still not clearly understood by most politicians or by most people. But the reality has been acknowledged publicly by the Committee of Ministers of the 47 member states of the Council of Europe in Strasbourg. Journalists around Europe, they say, face ‘unacceptable’ dangers by being threatened, intimidated, arbitrarily jailed, physically attacked and even killed because of their work. Those words appear in the first paragraph of the ministers’ ‘Recommendation on the Protection of Journalism and the Safety of Journalists’ which was issued in April 2016. The text has the status of ‘soft law’, which means that its assessment of the dangers and its specific recommendations about the necessary actions that governments are asked to take to implement their commitments to press freedom, are used as point of reference in actual cases that are the subject of rulings made by the judges of the Strasbourg Court.

I should make clear that I personally was an independent member of the Expert Committee, made up of both state and non-state members, which drafted that ministerial recommendation of 2016. The text says plainly that the perpetrators of attacks on journalists include both state actors, meaning public officials for example in the police and law enforcement, and non-state actors – including criminals and violent extremist groups. And the key element of that ground-breaking text was that the ministers urged their own state authorities to (so to speak) ‘clean up their act’. They called fornational governments at all levels to cooperate with expert civil society groups and other stakeholders to conduct wide-ranging and thorough reviews of their laws and practices, including anti-terrorism and national security laws, and to repeal or reform those which place undue restrictions on freedom of expression, especially press freedom.

The EU: no longer a model for press freedom in the world 

Since the year 2000 there has been a surge in the numbers of recorded killings and other violent attacks against journalists in the wider European area. The OSCE (Organization for Security and Cooperation in Europe), which includes the USA and Canada, has carried out a detailed study which found that in the 25 years from 1992 to 2017 as many as 392 journalists were killed because of their work in the organization’s 57 participating states. In nine out of ten of all those cases, the killers have still not been brought to justice and duly punished. The great majority of those killings took place in states which made up the former Yugoslavia or the former Soviet Union, not in Western or Central Europe. Fewer than 20 journalists died in the armed conflicts in Georgia and Ukraine. The vast majority were killed to stop them reporting on crime, corruption and serious human rights abuses. The epidemic of violence was broadly accompanied by new and severe legal and other arbitrary interferences and restrictions on the work of inquiring journalists across the OSCE region. And the contagion of hostility in various forms has progressively spread from Eastern Europe into Central and Western Europe during the past two decades.  

The shocking gangland-style murders of Daphne Caruana Galizia in Malta in October 2017 and of investigatíve journalist Ján Kuciak and his fianceé Martina Kušnírová in Slovakia in February last year, had important aspects in common. Both were well known for investigating and exposing alleged high-level corruption: in Daphne’s case that included money laundering and the use of hidden bank accounts by top politicians; Ján Kuciak was following a trail that appeared to show close links between the Italian mafia and figures near the top of the Slovak government. Daphne had reported critically for more than 20 years on the alleged misdeeds of the powerful. In that time she had suffered constant harassment and intimidation, including an arson attack on her home which might have killed her and members of her family. At the time of her death she also faced over 40 defamation lawsuits, many of them brought by government ministers and other politicians. The extremely high fines and damages allowed under Maltese law could have bankrupted her many times over, and even her bank account had been frozen by order of the authorities. In other words, she faced systematic judicial harassment and social exclusion as well as countless threats of violence. Put differently, physical harassment was combined with arbitrary legal and administrative harassment as the ruling elites joined forces to try to silence Daphne’s voice. 

The second aspect of these murders which makes them especially pernicious and corrupting of the rule of law is what human rights groups describe as a ‘climate of impunity’, which all too often protects those responsible for the murders of journalists from facing justice. Many months after both of those two cold-blooded murders, the Maltese and Slovak investigators have still not identified and charged the masterminds (1) who are presumed in both cases to have ordered the killings, although in both cases a number of other suspects have been arrested. Impunity has been a feature of many targeted killings of journalists in Russia, Serbia and other Eastern European states going back for two decades or more. It is now widely recognised that impunity leads to more violence and more killings because those who are prepared to resort to physical violence to silence journalists are encouraged to think they will avoid arrest and punishment. This understanding is reflected in a number of UN Resolutions, as well as that Council of Europe’s Ministerial Recommendation. Yet the international community has so far failed to show the determination to make the states concerned make the serious reforms needed to comply with their obligation under international law and their own national laws, and so eradicate impunity.

Three paths to the erosion of free and independent journalism

I have outlined the main causes and manifestations of the growing climate of hostility to journalists in Europe. I want now to look briefly at three particular ways in which the behaviour of governments contributes to the difficult environment for journalists. I believe that these forms of government behaviour are inconsistent with the norms and legal standards on which the post-World War Two system of protection for freedom of expression and other fundamental rights was built.

The first is the assumption by many governments of excessive and sweeping powers in the name of the fight against terrorism, especially since the devastating ‘9/11’ attacks on America. Peter Greste, the Australian-Latvian TV reporter, who was wrongly jailed in Egypt for about a year on terrorism charges, has said he believes that it was above all George W. Bush’s loud assertion in the wake of those attacks that “you are either with us or with the terrorists” that opened the way for governments everywhere to take drastic new power, with or without enacting new laws, to control and sometime to criminalise critical or dissenting ideas and opinions. Peter Greste said Mr Bush’s words “took away the neutral ground which journalists need to stand on” to perform their task of reporting the world as it is, and holding power to account.

Across Europe and beyond, governments stepped up ‘dragnet’ or mass surveillance as well as targeted surveillance, often catching journalists in their net and accusing them of links or acts of terrorism for seeking out sensitive information or just for political reasons to prosecute them, scare them, and sometimes, as has happened in Turkey – to put them in jail. One consequence has been that it has grown harder, if not impossible, for journalist to maintain the confidentiality of their sources of information, which the Strasbourg Court has identified as an essential pillar of media freedom. In the UK, police were found to have unlawfully accessed the phone records of journalists on many occasions for unauthorised purposes such as to identify and punish whistle-blowers who had helped to expose official wrongdoing. Anti-terrorism laws in France and Spain have been strongly criticised for excessively restricting free speech by criminalising statements about jihadi and other groups even when there is no incitement to violence. In Spain a rapper was sentenced to jail for a song that mocked the monarchy and satirised the country’s links with Saudi Arabia.

The second way in which certain government authorities have misused their power is through what some have called ‘state capture’ – meaning the takeover by partisan or private interests of all the main levers of state power, including the executive and its various law enforcement agencies, the legislature, and key appointments to the judiciary, for their own benefit and to keep themselves in power. The typical power structure in such cases is unchallenged leadership by an intolerant nationalist strongman, such as President Erdoğan in Turkey. The fusion of political power and media control is a key to this. The oxygen of freedom needed for a free press is sucked out, and the critical media are branded as ‘the enemy’ unless they are subdued and co-opted into compliance with the ruling elite. Such political systems have many names – including the vertical of power in Mr Putin’s Russia, and ‘illiberal democracy’ in Prime Minister Viktor Orbán‘s Hungary. There, in 2016, the leading liberal-left newspaper Népszabadság  was bought for a token amount and closed down by a business friendly to the Orbán government after the newspaper’s enemies successfully starved it of advertising revenues. Two years later the vast majority of Hungary’ privately-owned major media enterprises announced they were all coming under the umbrella of a pro-government foundation, effectively ending any pretence of media pluralism in the country. 

Detailed analysis in the 2018 Annual Report on Human Rights, Democracy and the Rule of Law in Europe by the Secretary-General of the 47-member state Council of Europe shows that most lack the strong legal framework and strict judicial independence needed to protect the physical safety of journalists (2). And the Council of Europe’s 2017 publication “Journalists under Pressure – Unwarranted interference, fear and self-censorship in Europe”  demonstrated from a survey of almost 1000 journalists across Europe that intimidation and self-censorship have become commonplace (3); some respondents described self-censorship in the face of pressures to trim or hide the truth as a ‘new normal’ in the world of journalism.

Thirdly, public smear campaigns and verbal attacks aimed at stigmatising journalists and their work have become common, fostering a climate of antagonism and encouraging the scapegoating of the media. Last year US President Trump in America was challenged by the United Nations Commissioner for Human Rights, who said that the president’s  inflammatory language against members of the media appeared to be “an incitement to attack” journalists not only in the US but elsewhere too. The former Slovak Prime Minister Robert Fico called journalists “dirty prostitutes” in response to media allegations of high-level corruption; and the Czech President Miloš  Zeman spoke about making journalists ‘extinct’ as a species. Close monitoring of actual assaults against journalists, including alerts published on the Council of Europe’s Platform to promote the safety of journalist show a sharp increase in the number of serious physical attacks in all parts of Europe (4). Even in the Netherlands, crime reporters have frequently been threatened by organised crime gang members, and in 2018 media offices in Amsterdam were attacked by an anti-tank missile. In Italy about 20 journalists now have to live under 24-hour police protection because of death threats from the mafia, and a government minister has flaunted his hostility by threatening to remove the long-standing police protection given to the well-known anti-mafia writer Roberto Saviano.

The body of legal protections and safeguards for freedom of expression, media freedom and the rule of law that was built up in the period after World War Two represents one of the great human achievements of the 20th century. But in the 21st century, once again, those protections are being badly eroded. The rise of nationalist populism and the backsliding of many governments call for determined responses by all concerned, including the academic community and civil society in general. The key must be to make government authorities fulfil their responsibilities under national and international law.

The EU must end its ‘double standards’ to confront growing threats to media freedom and fundamental rights

So far the record of the European Union in combatting these negative movements, and making a reality out of its ‘community of law and values’, has been unconvincing and ineffective. The first glaring weakness is that Article 11 of the Charter of Fundamental Rights has no ‘teeth’, that is to say no means of enforcement. National governments are fiercely jealous of their formal and informal powers to influence the media landscape at home. A second big flaw is that the EU is open to the charge of hypocrisy by establishing creditable Freedom of Expression Guidelines for governments to adhere to, but applying them only to states outside the EU, not to those which are members.  

The European Parliament is pushing for the EU to take radical steps to address the wider problem of the erosion of the fundamental rule of law in certain EU member states. The issue has come to the fore because of the EU’s acknowledgement of serious rule of law problems in Poland and Hungary, and deep-rooted corruption in Bulgaria and Romania; and the wider challenge of the rise of overtly populist and nationalist parties in almost every one of the 28 member states. Those enormous issues are for another day, but it is worth noting that the European Parliament pushed hard in 2018 for the establishment of a response mechanism in the form of an EU Pact for Democracy, Human Rights and the Rule of Law, to to be backed, perhaps, by stronger intervention and enforcement powers. That would be in line with the informal proposal floated by Michael O’Flaherty, head of the EU Fundamental Rights Agency, for an “EU Action Plan on the Safety of Journalists”; he was speaking at the European Commission’s 2017 Colloquium on Fundamental Rights Media Pluralism in a session on protecting journalists and their freedom of speech.   

It is also important to note that in all the ‘great debates’ now raging about how to respond to threats to the ‘international rules-based order‘ – whether at the United Nations, or the Council of Europe, or the African Union – the link is now being clearly recognised between attacks against media freedom and independence and the wider threat to the international order.

In future I expect that this forum of academics and experts in Frankfurt will engage with those momentous themes in the search for rational solutions which are also capable of commanding wide public support. For now, speaking on behalf of the Centre for Freedom of the Media – CFOM — at the University of Sheffield, I will simply remind you of the principle underlying the 2012 UN Action Plan on the Safety of Journalists and the Issue of Impunity. It is that a key battleground for the survival of free and democratic societies is the effective protection of press freedom and the safety of journalists.

The UN Plan calls on all concerned – governments, inter-governmental organisations, civil society, the media and academia to raise their awareness and take a lead, each in their own way, in defending press freedom, which an American statesman [Adlai Stevenson] famously called ‘the mother of all freedoms’.  Recently my colleague Professor Jackie Harrison at the University of Sheffield was named as the chair holder of UNESCO’s first Chair in Media Freedom, Journalism Safety and the Issue of Impunity. CFOM has sought to mobilise all the relevant ‘stakeholders’ to work together to strengthen the international frameworks of protection for journalists, guided by the spirit of the UN General Assembly, which in 2013 declared the 2nd of November to be ‘International Day to End Impunity for Crime against Journalists’. 

And for concerned scholars and researchers, CFOM last year, launched an online Journalism Safety Research Network, with the support of UNESCO, to promote a deeper understanding and collaborative research among members of the academic community into a wide range of issues related to journalists’ safety and effort to eradicate impunity.

Notes

  1. On 8 March 2019 the Slovak prosecutor’s office charged businessman Marian Kočner with ordering the murder of Ján Kuciak and his fiancée Martina Kušnírová. For details see the Update published on 14 March 2019 to media freedom alert  ‘Slovak investigative journalist killed at home‘ https://go.coe.int/kGHvX on the Council of Europe Platform for the Safety of Journalists

  2. Council of Europe (2018a) Secretary General 2018 Report: Role of Institutions, Threats to Institutions [Internet]. Council of Europe, Strasbourg, 14.5.2018. Available URL: https://www.coe.int/en/web/human-rights-rule-of-law/-/secretary-general-2018-report-role-of-institutions-threats-to-institutions [Accessed 21.3.2019].
  3. Council of Europe (2017) New study on intimidation of journalists and self-censorship in Europe [Internet]. Council of Europe, Strasbourg, 20.4.2017. Available URL: https://www.coe.int/en/web/freedom-expression/home/-/asset_publisher/RAupmF2S6voG/content/journalists-are-under-threat-in-europe-?desktop=false [Accessed 21.3.2019].

  4. Council of Europe (2018b) Media Freedom [Internet]. Council of Europe, Strasbourg. Available URL:  www.coe.int/fom [Accessed 21.3.2019].